Before SPARKS, MAJOR, and MINTON, Circuit Judges.
The plaintiff's decedent, McCarthy, was an engineer on the defendant's railroad. The train upon which the decedent was engineer was a passenger train running between Valparaiso, Indiana, and Chicago, Illinois. On September 16, 1941, the decedent, as engineer, took his run out of Valparaiso, and when he arrived at Indiana Harbor, a distance of twenty-three miles, the pony trucks on the right side of the engine developed a hot box. At Indiana Harbor, the decedent oiled the packing in this hot box. The tower operator at this station observed the hot box and telephoned that fact to the dispatcher's office in the office of the defendant's superintendent in Chicago. He also called the operator at the next station of Whiting, Indiana, and told him to notify McCarthy of the hot box. He gave McCarthy the "hot box signal," which McCarthy acknowledged. At Whiting, Indiana, the conductor gave McCarthy a signal to go to the next station of Colehour, about a mile or more distant, and get another engine, but McCarthy ignored this signal and went on.The agent at Whiting, Indiana, also gave McCarthy the "hot box signal," which he acknowledged, but as soon as the baggage was loaded, he proceeded on to Englewood, Illinois. When the train arrived at Englewood, the hot box attracted the attention of a number of people, two of them calling McCarthy's attention to it. Here the conductor talked to McCarthy and asked him if he didn't want to get another engine at the defendant's shops at 59th Street in Chicago, but McCarthy refused and continued on toward the Union Station in Chicago.At 22nd Street the block operator and switch tender, who knew McCarthy, signaled to him about the hot box, but McCarthy smiled and started up. He had traveled a short distance when the pony truck broke down because of the hot box, the engine turned over, and as a result thereof McCarthy was killed.
The plaintiff as administrator of the estate of McCarthy brought this action under the Safety Appliance (Boiler Inspection Act) and Employers' Liability Acts, 45 U.S.C.A. 23 and 51-60 to recover for the benefit of the mother of decedent, who survived him. The jury returned a verdict for the defendant upon which judgment was entered by the District Court, and from this judgment, this appeal was taken.
The plaintiff in his complaint charged the following acts of negligence on the part of the defendant:
"Par. 6. That said defendant carelessly and negligently allowed and permitted said locomotive to be used in interstate commerce with a defective journal on the front axle of the said engine truck.
"Par. 7. That the said defendant carelessly and negligently permitted said locomotive to be placed in service to operate said train with defects in said locomotive which permitted said journal on the front axle of said engine truck to become overheated.
"Par. 8. That the said defendant carelessly and negligently permitted and ordered said train to be operated with said defective locomotive after it became known to the employees and officials of the said defendant that said journal on said locomotive was overheated."
All the above charges of negligence, proven without question by the evidence, spell out a violation of the Safety Appliance Act.
Only one question is presented, and that is whether the court properly instructed the jury.
The Safety Appliance Act, 45 U.S.C.A. § 23, provides that: "It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive * * * and all parts and appurtenances thereof are in proper condition and safe to operate * * *."
Section 1 of the Employers' Liability Act, 45 U.S.C.A. 51, provides: "Every common carrier by railroad while engaging in commerce * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, * * *."
These two Acts are in pari materia, and must be construed together. If the defendant in violation of Section 23 of Title 45 U.S.C.A. furnished the plaintiff's decedent with a locomotive that was defective and unsafe to operate, that would be negligence per se and would authorize an action under Section 51 of the same Title. This has long been the construction of these statutes. "* * * If this act is violated, the question of negligence in the general sense of want of care is immaterial. Texas & P. Ry. v. Rigsby, 241 U.S. 43, 36 S. Ct. 482, 60 L. Ed. 874, and cases there cited. But the two statutes are in pari materia, and where the employers' liability act refers to 'any defect or insufficiency, due to its negligence, in its cars, engines, appliances,' etc., it clearly is the legislative intent to treat a violation of the safety appliance act as 'negligence' - what is sometimes called negligence per se." San Antonio & Aransas Pass R. Co. v. Wagner, 241 U.S. 476, 484, 36 S. Ct. 626, 630, 60 L. Ed. 1110.
Under the statute the defendant's duty became absolute and continuing to furnish to plaintiff's decedent a locomotive that was in a safe condition to operate in commerce on its railroad without peril to its employees. The duty to exercise ordinary care to provide a safe locomotive, which was the rule at common law, was made absolute by the terms of the Safety Appliance Act. No notice to the defendant, constructive or otherwise, as to the defective, unsafe condition of ...